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2005 DIGILAW 136 (KAR)

N. RAMU v. STATE OF KARNATAKA

2005-02-18

D.V.SHYLENDRA KUMAR

body2005
D. V SHYLENDRA KUMAR, J. ( 1 ) PETITIONER is a holder of contract carriage permits issued by the State of Andhra Pradesh in respect of his vehicles, also registered in the State of Andhra Pradesh. It appears, a portion of the route covered under the permits lies in the State of Karnataka and the permit holder is required to obtain the countersignature in the State of Karnataka. Petitioner, who is operating motor vehicles in the State of Kamataka, is also liable to pay tax under the provisions of the Karnataka Motor Vehicles taxation Act, 1957 (for short, 'karnataka Act'), in terms of section 3 the charging section - and tax at the rate specified in Part 'a' of the schedule is levied on all motor vehicles on use of the roads in the State. The petitioner's vehicles which are being used on the road in the State of karnataka as contract carriages and as part of the routes passes through the State of Karnataka, obviously are liable to tax, as Section 3 of the Act is attracted. ( 2 ) INSOFAR as kind of vehicles that the petitioner is owning and the nature of the operations having regard to the permits issued to the petitioner is concerned, the submission of Sri C. Narasimhachar, learned counsel for the petitioner, is that they are covered by Entry 5 of Part 'a of the Schedule to the Karnataka Act. It appears that this Entry has undergone several changes, one such being in terms of the Karnataka act No. 9 of 2003, with effect from 29th March, 2003. The relevant entry, after such amendment, reads as under: (a) (i) motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry more than 12 passengers (excluding driver and conductor/attendant) and covered by permit issued under Section 74 of the Motor Vehicles Act, 1988 and complying with Rule 151 (2) of the Karnataka Motor Vehicles Rules, 1989, for every passenger 750. 00 (ii) motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry more than 12 passengers (excluding driver and conductor/attendant) and covered by permit issued under Section 74 of the Motor Vehicles Act, 1988 and complying with Rule 128 of the Central Motor Vehicles Rules, 1989, for every passenger 2,000. 00 (ii) motor vehicles (contract carriages) plying for hire or reward and constructed or adopted to carry more than 12 passengers (excluding driver and conductor/attendant) and covered by permit issued under Section 74 of the Motor Vehicles Act, 1988 and complying with Rule 128 of the Central Motor Vehicles Rules, 1989, for every passenger 2,000. 00 ( 3 ) IT appears, after the amendment to the Entry in this manner, the authorities in the State of Karnataka are collecting taxes on the vehicles of the petitioner at the rate of Rs. 2,000/- per passenger. Submission of the learned Counsel for the petitioner is that the authorities are collecting this tax by using coercive methods, particularly by denying countersignature to the permit in the State when the petitioner had sought for the countersignature and in such circumstance, the petitioner is left with no choice but to pay the tax under protest and the petitioner has now approached this Court for the relief of declaration to the effect that the petitioner is not liable to pay the tax at this rate and though the petitioner is not covered under either clause (a) (i) or (a) (ii) referred to in the Entry as of now, nevertheless the petitioner is prepared to pay tax at the rate of Rs. 750/- per passenger and definitely not at the rate of Rs. 2,000/- per passenger, as the petitioner is not liable to pay the tax at that rate under this Entry, a declaration should be issued in favour of the petitioner to this effect and the authorities be directed to levy tax on the vehicles of the petitioner at the rate of Rs. 750/- per passenger. ( 4 ) SUBMISSION of Sri Narasimhachar, learned Counsel for the petitioner proceeds on the premise that the vehicles of the petitioner which are registered in the State of Andhra Pradesh are one which conforms to the requirements of Rule 334 of the Andhra Pradesh Motor vehicles Rules, 1989 (for short, 'ap Rules'); that the vehicles are not one which are constructed to be in conformity with Rule 128 of the Central motor Vehicles Rules, 1989 (for short, 'central Rules'), and if so, the petitioner is not liable to pay tax at the rate of Rs. 2,000/- per passenger. ( 5 ) STATEMENT of objections is filed on behalf of the respondents. 2,000/- per passenger. ( 5 ) STATEMENT of objections is filed on behalf of the respondents. The petition is opposed and while it is pointed out that factually the vehicles of the petitioner do not conform fully with the specification in Rule 331 or 334 of the AP Rules, the seating capacity as provided for the vehicles namely, seating arrangement of 36 or 37 are the arrangements provided only in Rule 128 of the Central Rules and if so, it is inevitable that the petitioner pays the tax at the rate as is contemplated under Entry 5 (a) (ii), Part 'a' of the Schedule to the Karnataka Act. ( 6 ) THOUGH it is not proper on the part of this Court to embark upon to issue declarations in favour of the petitioner in the exercise of its jurisdiction under Article 226 of the Constitution of India, as the petitioner has questioned the legality of certain levy of tax under the karnataka Act in the context of Entry, I am considering the contentions and submissions made on behalf of the petitioner. It is not in dispute that the petitioner is operating on the permits issued under Section 74 of the Motor Vehicles Act, 1988 (for short, 'mv Act' ). It is also not in dispute that the vehicles of the petitioner are not governed by Rule 151 (2) of the Karnataka Motor Vehicles Rules. The only question then is as to whether the vehicles can be said one required to conform to the specifications under Rule 128 of the Central Rules. Rule 128 of the central Rules reads thus: "128. Tourist vehicles other than motorcabs, etc.-A tourist vehicle, other than motorcab, taxicab, campers van house trailer, shall conform to the following specifications, namely.- xxx xxx xx x". ( 7 ) ON a reading of this Rule reveals that unless the vehicle in question is a vehicle of the nature of motorcab, taxicab, campers van house trailer, it will have to conform to the specifications mentioned in this Rule. Undisputedly, the petitioner's vehicles are tourist vehicles i. e. , buses and not vehicles coming under any of this three categories mentioned in Rule 128. Undisputedly, the petitioner's vehicles are tourist vehicles i. e. , buses and not vehicles coming under any of this three categories mentioned in Rule 128. Though Sri Narasimhachar, learned Counsel for the petitioner who guardedly submits that the vehicles are only contract carriage and not tourist vehicles, it is inevitable to observe that the vehicles of the petitioner are only tourist vehicles which are covered by the contract carriage permits. ( 8 ) BE that as it may, the question is if the vehicles in question are not one which are of the nature of the three exceptions referred to above, rule 128 of the Rules enjoins such vehicles to conform to the requirement mentioned in the Rule. The petitioner's vehicles admittedly not coming under the said three exceptions, are, therefore, required to conform to the specifications mentioned in the Rule, in which event, they are vehicles which are covered under Entry 5 (a) (ii) of Part 'a' of the schedule to the Act. The question is not so much as to whether the petitioner has fully conformed to the requirements of the Rule. The question is as to whether the vehicles of the petitioner are required to conform to the requirements of the Rule 128 of the Central Rules. So long as such requirement is insisted under Rule 128, the vehicle is one which is covered under Entry 5 (a) (ii) of Part 'a' of the Schedule to the act. There is no escape from payment of tax by the petitioners in respect of the vehicles in question, as contemplated under the Karnataka Act. ( 9 ) HOWEVER, Sri Narasimhachar, learned Counsel for the petitioner seeks to try to support his submission by relying on the decision of this court in Jay anna v Assistant Regional Transport Officer, wherein it has been held that until and unless a particular vehicle is expressly covered by a corresponding Entry in the Schedule to the Act, there cannot be any liability on the vehicle for payment of tax under this Act, and accordingly, the learned Counsel for the petitioner submits that as the petitioner's vehicles do not conform to the Rule 128 of the Central rules, the vehicles do not fall within the scope of Entry 5 (a) (ii) of Part 'a' of the Schedule to the Act. The argument fails, as I have examined the scope of the Entry and found that the vehicles do come within the scope of the Entry 5 (a) (ii) of Part 'a' of the Schedule to the Act, as they are vehicles which are required to conform to the specifications in Rule 128 of the Central Rules. ( 10 ) NO other grounds are urged. There is no merit in these petitions. Writ petitions are accordingly dismissed. --- *** --- .